Lang: VA medical records generated within one year of decision are "constructively" in VA's possession and render that decision nonfinal

Lang v. Wilkie, docket no. 2019-1992 (Fed. Cir. August 19, 2020)

HELD: “[A]ll relevant and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator. … [R]ecords received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it was (1) generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” 

SUMMARY: Vietnam combat veteran (recipient of the Purple Heart and Combat Action Ribbon) was granted service connection, rated 10%, in June 1996. He did not appeal that decision, but he did continue to receive mental health treatment at the VA from July 1996 to June 1997. In 2014, he sought to revise the 1996 decision on the basis of clear and unmistakable error (CUE). The RO and the Board both denied this request. The CAVC rejected his argument that the 1996 RO decision never became final because the VA medical records that were generated within one year of that decision were never reviewed – and that VA never issued a decision as to whether those records were new and material under 38 C.F.R. § 3.156(b). The CAVC acknowledged that a nonfinal decision could not be the subject of CUE – and held that the VA medical records were not constructively received by the VA adjudicator because the veteran “failed to prove that the ‘VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.”

The relevant VA regulation in effect at the time stated: “New and material evidence received prior to the expiration of the appeal period … will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). The Federal Circuit has held that under this regulation, when VA receives new and material evidence it “must provide a determination that is directly responsive to the new submission and …, until it does so, the claim at issue remains open.” Beraud v. McDonald, 766 F.3d 1402, 1408 (Fed. Cir. 2014). 

On appeal to the Federal Circuit, the Secretary first argued that the CAVC did not have jurisdiction to address the veteran’s argument regarding the post-decision VA medical records because he did not raise that issue below. The Federal Circuit rejected that argument, finding that the veteran’s argument was not a new CUE claim. Rather, “[i]t was an argument that no CUE inquiry need occur because the 1996 rating decision is not final.” 

The Federal Circuit then discussed VA’s “long history of considering documents that were not literally before an examiner to be constructively part of a claimant’s record,” citing several “constructive possession” cases, including Bell v. Derwinski, 2 Vet.App. 611, 613 (1992), Bowey v. West, 11 Vet.App. 106, 108-09 (1998), Goodwin v. West, 11 Vet.App. 494, 496 (1998), and Monzingo v. Shinseki, 26 Vet.App. 97, 102 (2012). 

The Court also examined Turner v. Shulkin, 29 Vet.App. 2017 (2018), in which the CAVC held that constructive receipt of VA treatment records “requires knowledge by VA adjudicators … of the existence of those treatment records within the one-year appeal period.” In other words, the Turner Court required a “triggering principle” in order to deem the records constructively in VA’s possession. The Federal Circuit reversed this holding, finding that the CAVC “articulated an erroneous statement of the law when it failed to adequately address Bell and its progeny.” 

The Court reiterated the CAVC’s prior, consistent holding that “in the context of records created prior to a decision, all relevant records and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator.” The Court thus held that 

records received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.

The Court added: “There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply.” 

Advocacy note: Wow. 

The Court made several other critical statements: (1) “Medical records created by the VAMC as a result of the treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran’s claims because all such records can reasonably be expected to be connected to the veteran’s claims” and (2) “A veteran’s own medical records, generated by the VA itself, are always reasonably related to a veteran’s claim.”

As applied to this case, the Court held that any records created by Mr. Lang’s VA medical facility during the one-year period following the 1996 decision were “in the possession of the VA and constructively received by the VA adjudicator” – and those records rendered the 1996 decision nonfinal until VA makes a decision as to whether those records are new and material under § 3.156(b).

Advocacy note: This case is huge. It will potentially allow veterans to avoid the high burden of establishing CUE in a prior decision IF the veteran received relevant VA medical treatment within one year of that denial. If so, then the veteran could argue, under Lang and § 3.156(b), that the prior denial was nonfinal due to (1) VA’s constructive possession of those relevant records and (2) its failure to make a written determination as to whether those records were “new and material.”